Collective Punishment Receives a Judicial Imprimatur

In her recent book on the application of international humanitarian law by national courts, Sharon Weill describes the “apologist role” that is sometimes played by domestic judicial bodies, whereby decisions of courts serve to legitimise unlawful state policies. Last week’s judgment by the Israeli Supreme Court (sitting as the High Court of Justice) upholding the orders of a military commander to destroy and seal a number of Palestinian houses in the West Bank is an exemplary case in point.

The judgment in Qawasmeh et. al.is significant for it provides judicial approval for the recent reinstatement of Israel’s punitive house demolition policy after a “decade-long hiatus”. The judges condone practices of collective punishment, despite the existence of a clear prohibition of such practices under international humanitarian law. The approval is not inadvertent, for the judgment shows that the Court is fully aware of the harm caused to persons other than the perpetrator by the practice of demolishing or sealing the houses of those responsible for criminal or hostile acts.

The background facts of the case are well-known, given that the kidnapping and murder of three Israeli teenagers in the West Bank in June 2014 served as the trigger for a violent escalation leading to ‘Operation Protective Edge’ in Gaza. The Israeli authorities identified the alleged perpetrators of this crime and ordered the demolition or sealing of their homes “in view of the need to deter others from the recurrence of similar actions” (although one residence was already destroyed once the individual was identified). At the time of the judgment, two of the suspects had not been arrested and the third had not yet been tried. Since then, the demolition and sealing orders have been carried out, with a statement by the Israeli military expressly referring to the Supreme Court’s affirmation of the orders and its rejection of the petitioners’ appeals.

The Court took heed of the petitioners argument that demolishing family homes as a penalty amounts to a prohibited act of collective punishment. Justice Danziger, delivering the judgment in Qawasmeh et. al., acknowledged the impact of measures taken pursuant to Regulation 119 of the Defence (Emergency) Regulation 1945:

…there is no dispute that the exercise of the authority under regulation 119 by way of seizure and demolition or sealing of residential homes severely violates the fundamental rights of the uninvolved inhabitants of said houses. Indeed the demolition or sealing of a house in which lives a person who has not sinned is in contrary [sic] with the right to own property, the right to dignity and even the right to housing.

He added that the Court had repeatedly held that “such demolition and sealing cannot be reconciled with concepts of justice and basic moral principles”. Nonetheless, this authority under the Regulations could be exercised if done so proportionately, if there was a demonstrable military need for deterrence and if such deterrence is served by the measure: “in the absence of a weighty deterring purpose the military commander may not exercise his authority to punish terrorists or as a means for collective punishment of uninvolved parties”. In other words, collective punishment is permitted if a military commander makes the argument that it acts as a deterrent, even though, as Justice Danziger acknowledges, “regulation 119 violates the rights of innocent parties”.

This is not a new justification; the Court held almost thirty years ago in Daghlas et. al. that the claimed deterrent effect of house demolitions “should naturally apply not only to the terrorist himself, but to those surrounding him, and certainly to family members living with him”. In Qawasmeh et. al.,the military commander’s orders were seen as proportionate, as an attempt was seemingly made to minimise harm, even though the actions “severely injure uninvolved parties, including young children, which is regretful”.

As to the determination of the need for such claimed deterrent measures, the Court was deferential to the views of the Israeli military, reflecting an ongoing trend that has been analysed in detail in the works of both Sharon Weill and David Kretzmer. “These evaluations”, Justice Danziger wrote, “are situated at the heart of the respondent’s expertise, and this court will not tend to interfere therewith other than in extraordinary cases and when weighty reasons are presented”. The Court referred to its ‘Awawdeh judgment of the previous month, where it similarly held that it would not second guess the authorities decisions regarding the need for or effectiveness of deterrent measures. It had also held that it was:

impossible to conduct a scientific research which would prove howmany terror attacks were prevented and how many human lives weresaved as a result of taking the measure of house demolition.

While such inconclusivity was read in favour of the respondent, it could also as easily have been interpreted to the benefit of the petitioners.

Nevertheless, the prohibition of collective punishment under international humanitarian law does not countenance any exceptions, whether it be for deterrence or any other reason. The rule in Article 33 of the Fourth Geneva Convention states clearly that “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation and terrorism are prohibited”. In Qawasmeh et. al.,Justice Sohlberg also acknowledged the collective punishment imposed by demolitions, admitting that “injuring a family – who committed no sin – in a manner which will cause him to remain without a roof over his head, contrary to fundamental principles, is troublesome”. However, this was explained away by making a comparison with the injury suffered by family members when a relative is imprisoned and, by arguing that for the purpose of deterrence, sealing or destroying homes “necessarily entails the impingement of innocent people”.

Israeli and Palestinian human rights organisations have consistently campaigned against punitive house demolitions as a violation of humanitarian law’s prohibition of collective punishment. The Israeli courts have not been receptive to these arguments; the Supreme Court began its substantive discussion in ‘Awawdehby stating that “all arguments raised in this petition have already been discussed and decided by this court in previous judgments”. These demolitions have not occurred in isolation, but have been a long-standing feature of the occupation, alongside frequent destruction of Palestinian property, including Bedouin villages built without permits, not to mention the widespread destruction that has been a feature of the large-scale military operations in Gaza over recent years.

Various other Israeli practices in the occupied territories have also been described as amounting to collective punishment. The ICRC considered the closure of Gaza itself as such, finding that “[t]he whole of Gaza’s civilian population is being punished for acts for which they bear no responsibility”. The United Nations Fact-Finding Mission on Gaza viewed conduct during ‘Operation Cast Lead’ as amounting to collective punishment (see paras 60, 74, 91, 1171, 1320, 1457, 1494). The Mission’s report notes that the imposition of collective penalties “amounts to measures of intimidation and terrorism”. It is not by accident that the rules against collective punishment, intimidation and terrorism appear within the same article of the Fourth Geneva Convention.

Israel is not the only party to an armed conflict to have resorted to collective punishment in recent times. Human Rights Watch reported in 2010 that the Pakistani army had engaged in forced evictions and the demolition of the homes of the relatives of suspected militants in the Swat Valley. However, it would seem to be the only contemporary example of where judicial approval has been so steadfastly forthcoming for a policy which breaches a customary rule of international humanitarian law.